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Time for a Perp Walk Ban?

Dominique Strauss-Kahn’s house arrest is over, but he’ll never be free of his guilty-looking perp walk photo. Tony Dokoupil on why such images threaten our society’s constitutional rights.

Eventually, all that may be left are the photos: Dominique Strauss-Kahn (freed from house arrest on Friday), looking dead-eyed, haggard, and above all, guilty as he is marched into a Manhattan courthouse in May to face sexual-assault charges.

The shots fueled an international media event, and even as the case unravels, they remain indelible images: the debonair head of the International Monetary Fund, a dashing contender for the French presidency, manacled on a public street. Should such shots have been published? In France, and much of Europe, where it’s illegal to show images of the accused, they drew sharp criticism. In this country, the “perp walk” tradition is as American as the right to remain silent, and it is rarely seriously questioned. That may be about to change.

“The perp walk is an abomination to justice,” says Alan Dershowitz, the Harvard law professor and frequent critic of the American judicial system. “If I had been [Kahn’s] lawyer, the first thing I would have done is go into federal court and seek an injunction against the perp walk. And I think eventually some lawyer is going to do that—maybe me, maybe some other lawyer—and we’re gonna win.”

Former New York City Mayor Rudy Guiliani is credited with popularizing the perp parade when he served as U.S. attorney for the Southern District of New York in the 1980s. His walk-of-shamers were usually white-collar suspects like Strauss-Kahn or, almost as famously, the WASP bond trader Sherman McCoy, whose good name was ruined in Tom Wolfe’s bestselling novel The Bonfire of the Vanities.

But since then the lights-camera-arrest routine has become a national phenomenon, a way for hard-charging detectives and prosecutors to raise their own profile while pushing for convictions. The press usually follows the script, depending on the authorities for almost all their case information and publishing whatever breathtaking image they can get.

The public has a right to know, it’s often said. But people also have a right to a fair trial and freedom from an undue flogging. The perp walk threatens both.

As the hundreds of wrongfully convicted people released on DNA evidence can attest, not all who are arrested are guilty, not all are deserving of punishment. But punishment is what’s doled out in perp walk photos. The presumption of innocence is replaced, in the popular mind, at least, with a widely held presumption of guilt, buttressed by a damning photograph. Who doesn’t look guilty after spending the night in jail? The impression can destroy the right to a fair trial, poisoning the jury pool by turning its members against the accused. And even if the suspect goes on to be pronounced innocent, he or she does not get off scot-free.

Kahn may escape prison, but he’s already been forced to resign from the IMF, his political aspirations are sunk, and his case invited ex-friends, colleagues, and acquaintances to air their worst grievances against him, sharpening some very old knives. Kahn’s wife, like the family members of every publicly accused person, has also been humiliated by the photo, confronted with an image her husband at his unwashed worst.

The public has a right to know, it’s often said. But people also have a right to a fair trial and freedom from an undue flogging. The perp walk threatens both.

Next time, press outlets might want to pause before pressing publish on perp walk photos, even if the law allows their publication. “U.S. media practices are almost unimaginably prejudicial to defendants,” Washington and Lee journalism ethics professor Edward Wasserman wrote earlier this year. The new normal is to operate “not as a check on the prosecutorial state but as its servant, and unwittingly mete out punishments that are less deliberate, less proportionate, less deserved, and far less accountable than those pronounced by judges.”

Still, the perp walk is probably here to stay, an enduring vestige of medieval stocks in the public square. It’s even gaining supporters in parts of Europe, fueled by contempt for a wave of immigrants often blamed for local crimes, according to a recent study cited by Wasserman. Just because the photo op is available, however, doesn’t mean it needs to be covered.